The Royal Embassy of Saudi Arabia (Cultural Bureau) v A Alhayali
[2023] EAT 149
The Kingdom of Spain v L Lorenzo
12 December 2023
[2023] EAT 153
Employment Appeal Tribunal
A person sued Spain for racism at the Spanish Embassy in London. Spain argued it had immunity. The court said Spain didn't have this special protection and the case could go ahead. A small mistake by the first court didn’t change this.
Key Facts
- •Appeal against a London Central Employment Tribunal decision concerning race discrimination claims brought by Ms L Lorenzo against the Kingdom of Spain.
- •Ms Lorenzo, a dual British-Spanish national, worked at the Spanish Embassy in London.
- •Claims were initially against the Embassy but the Tribunal correctly held the Kingdom of Spain was the proper respondent.
- •The appeal focused on diplomatic and state immunity, and whether the Tribunal correctly characterized the employment as non-sovereign.
- •The Tribunal dismissed claims under the Employment Rights Act 1996 and the Employment Act 2002 but allowed claims under the Equality Act 2010 to proceed.
Legal Principles
Diplomatic immunity under Article 31 of the Vienna Convention applies to diplomatic agents, not the sending State.
Vienna Convention on Diplomatic Relations 1961, Diplomatic Privileges Act 1964
State immunity under the State Immunity Act 1978 (SIA) does not apply to acts of a private law character; the court must consider the whole context of the claim.
State Immunity Act 1978, Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62
Section 4(2)(a) of the SIA, granting immunity to claims by a state's own nationals, may not be justified by customary international law and can be disapplied if incompatible with EU law (Article 47 of the Charter).
State Immunity Act 1978, Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62
In determining whether an act is sovereign or non-sovereign for state immunity purposes, the court considers the nature of the employment and the acts of alleged discrimination, not solely the nature of the employment contract.
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62
Outcomes
Grounds 2, 3, 5, and 6 of the appeal were dismissed.
The Tribunal correctly held that diplomatic immunity did not extend to the State itself and correctly disapplied Section 4(2)(a) of the SIA due to incompatibility with EU law. The Tribunal's finding that the employment was not sovereign was not perverse.
Ground 4 of the appeal was allowed in principle but did not affect the Tribunal's decision.
The Tribunal should have considered the pleaded acts of discrimination in assessing whether they were sovereign acts, but its ultimate conclusion would have been the same.